Jonathan Smith v. State of Missouri, et al

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, Pasco M. Bowman and Lavenski R. Smith (PUBLISHED) [4332358] [15-2388]

United States Court of Appeals
For the Eighth Circuit
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No. 15-2388
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Jonathan D. Smith
lllllllllllllllllllll Plaintiff - Appellant
v.
State of Missouri; City of St. Louis; MSI/Workhouse; Corrections Medical
Services, Corizon; Dean Minor; Matthew W. Huckeby; Sarah Johnson; Alison
Bischoff; Jennifer Joyce; Mark Meyer; David Brown; John Nocchiero; Donnell W.
Tanksley; Amy Sandler; Evans Buchheim; Sheriff Department; Robin Carnahan;
Russell Carnahan; Moberly Mailroom
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Missouri - Hannibal
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Submitted: October 22, 2015
Filed: October 30, 2015
[Published]
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Before LOKEN, BOWMAN, and SMITH, Circuit Judges.
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PER CURIAM.
Jonathan Smith appeals from the order of the District Court dismissing his civil
action without prejudice. The District Court construed Smith’s motion to proceed

Appellate Case: 15-2388

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Date Filed: 10/30/2015 Entry ID: 4332358

in forma pauperis on appeal as also seeking relief under Rule 60(b) of the Federal
Rules of Civil Procedure. The court then determined that it lacked jurisdiction to rule
on the request for Rule 60(b) relief because Smith had simultaneously filed a notice
of appeal (NOA). We agree that the motion should be construed as seeking Rule
60(b) relief, but we hold that the District Court was mistaken in believing that it
lacked authority to rule on the motion, which was filed within 28 days of the district
court’s order. See Fed. R. App. P. 4(a)(4)(A)(vi) (the time to appeal runs from the
date of the order disposing of a Rule 60 motion if that motion is filed within 28 days
of the judgment), 4(a)(4)(B)(i) (if a party files a NOA after judgment is entered but
before the district court disposes of a timely Rule 60 motion, the NOA becomes
effective upon entry of an order disposing of the pending motion); see also, Miles v.
Gen. Motors Corp., 262 F.3d 720, 722 (8th Cir. 2001) (noting that a notice of appeal
filed while a postjudgment motion is pending in the district court “is treated as merely
dormant” until that court rules on the motion). Because Smith’s NOA will not
become effective until after the District Court has ruled on his request for Rule 60(b)
relief, we lack jurisdiction over the appeal at this time. We will take up Smith’s nowdormant appeal, and his pending appellate motions, after the District Court has ruled
on the postjudgment motion and the appeal ripens. See Miles, 262 F.3d at 722.
The District Court is directed to forward its order ruling on the postjudgment
motion to the clerk of this court.
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Appellate Case: 15-2388

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Date Filed: 10/30/2015 Entry ID: 4332358